Answer:
Step-parents in Arizona may have legal child custody or visitation rights under certain circumstances. Essentially, Arizona law allows step-parents who have acted in place of a parent to petition the court for child custody and parental access (visitation) rights. In loco parentis is the term adopted in the Arizona statute to describe this situation. Presumably, the step-parent would request child custody or visitation as part of a divorce or legal separation proceeding in the Arizona family court.
Acting in place of a parent is a high burden to meet and really requires more than just a relationship between a step-parent and step-child. In Arizona, a step-parent appears to have two routes to take in maintaining a relationship with a step-child. One such route would be to request visitation rights via an appropriate petition and the other route would be to actually request custody by alleging, among other things, that it would be significantly detrimental for either of the child's legal parents to have custody.
In Arizona, in loco parentis rights are covered by Arizona Revised Statute §25-415, reprinted below:
A.R.S. §25-415. Custody by nonparent; presumption; grounds; definitions
A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.
3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child's legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
B. If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.
C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months.
2. The child's legal parents are not married to each other at the time the petition is filed.
3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:
1. The child's parents.
2. A person who has court ordered custody or visitation rights.
3. The child's guardian or guardian ad litem.
4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
5. Any other person or agency that has previously appeared in the action.
F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.
G. For the purposes of this chapter:
1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.
Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm
Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004
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Goodyear, Arizona 85338
Ph: 623-344-7880
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attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.
When an obligor parent (the parent paying child support) makes payments toward a child support arrearage in Arizona, the court should first apply the payment to interest. This means that the child support arrearage itself will be paid only after the accrued interest is paid. So the Arizona Court of Appeals held on January 11, 2005 in Alley v. Stevens , 1 CA-CV 04-0097.
